Overview:
Microsoft was recently sued by Surfcast under the theory of patent infringement based on the new tile layout of window 8 devices. Below is one of the claims likely to be in question during litigation, and my initial thoughts as a patent attorney regarding the case.
Representative claim:
1. A method executed by a device under the control of a program, said device including a memory for storing said program, said method comprising:
selecting a plurality of information sources;
partitioning a visual display of the device into an array of tiles, wherein each tile in said array of tiles is associated with an information source in said plurality of information sources;
assigning a first refresh rate to a first tile of said array of tiles and a second refresh rate to a second tile of said array of tiles;
updating information from a first information source in said plurality of information sources presented to said first tile in accordance with said first refresh rate; and
simultaneously updating information from a second information source in said plurality of information sources presented to said second tile in accordance with said second refresh rate.
Initial Patent Attorney Thoughts and Questions:
1) What type of patents does Microsoft have access to that may be used to invalidate Surfcast’s patent? Typically, one of first steps when defending a patent suit is to have a re-examination of the accusers patent to try to hold it invalid. Surfcast’s patent was filed in the year 2000, therefore any information that was publically disclosed at the time could be used to invalidate Surfcast’s patent and dismiss the suit.
2) What type of products/services does Surfcast make? A big issue with suing a company like Microsoft is that you have awoken a sleeping giant, and they are likely to file counter suits on your products. If Surfcast is in technology business Microsoft likely has patents covering aspects of their business, therefore Surfcast may have to endure heavy attorney fees for defending the impending counter suits.
3) There are several claimed terms that I am interested to see how they are constructed. My main issue is of the word “simultaneously” in the claim. I read simultaneously to mean “at the same time,” but because the tiles are being update at a “first refresh rate” and a “second refresh rate” would a court hold this claim to be indefinite because the refresh rates are different, and therefore can’t occur at the same time? I understand that Surfcast’s above claim is meaning to say that the tiles are updated at their own refresh rate, however, the wording is slightly ambiguous. More so, this term is ambiguous because this limitation is not put in front of the first “updating” for the first refresh rate. Once again, while reading the claim in normal English I understand what the claim is intended to mean, but as a patent attorney this causes me to do a double take.
4) The claimed term “each tile in said array of tiles is associated with an information source in said plurality of information sources.” What will a court hold during claim construction to be an information source? I am sure Microsoft has a default load such as a camera. Would the camera be held to information source? Because the claimed term says that “each” tile has an associated information source, if a court holds that a camera is not an information source and the camera is always required to be on the home screen, then Microsoft will not infringe on this patent. In my mind it a camera wouldn’t be an information source, but that’s for the court to decide.